Sevier Citizens for Clean Air & Water, Inc. v. Department of Environmental Quality

2014 UT App 257
_________________________________________________________

THE UTAH COURT OF APPEALS

SEVIER CITIZENS FOR CLEAN AIR AND WATER, INC.,
Petitioner,
v.
DEPARTMENT OF ENVIRONMENTAL QUALITY AND
SEVIER POWER COMPANY,
Respondents.

Opinion
No. 20130547-CA
Filed October 30, 2014

Original Proceeding in this Court

Marcus Taylor, Attorney for Petitioner

Sean D. Reyes, Christian C. Stephens, and
Craig W. Anderson, Attorneys for Respondent
Department of Environmental Quality

Brian W. Burnett, James D. Gilson, and
Benjamin P. Harmon, Attorneys for Respondent
Sevier Power Company

JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGE
GREGORY K. ORME and SENIOR JUDGE JUDITH M. BILLINGS
concurred.1

1. The Honorable Judith M. Billings, Senior Judge, sat by special
assignment as authorized by law. See generally Utah R. Jud.
Admin. 11-201(6).
 Sevier Citizens for Clean Air and Water, Inc. v. Department of
Environmental Quality

ROTH, Judge:

¶1 The Utah Department of Environmental Quality (the
Department) dismissed the request for agency action filed by
Sevier Citizens for Clean Air and Water, Inc. (Sevier Citizens) on
the basis that Sevier Citizens had failed to file a petition to
intervene in the permit review adjudicative proceedings
between the Department and Sevier Power Company (Sevier
Power). On petition for judicial review, Sevier Citizens
acknowledges that it did not file a separate intervention petition
but argues that its request for agency action met the
requirements for a petition to intervene. We decline to disturb
the Department’s decision.

BACKGROUND

¶2 In spring 2012, the Utah Division of Air Quality (the
Division) issued a notice of intent to grant a permit for Sevier
Power to operate a gas-fired power plant in Sevier County, Utah.
Sevier Citizens was not a party to those proceedings. A
mandatory public comment period followed, during which
Sevier Citizens filed twenty-one pages of comments raising
concerns about the effects of the plant’s operations should the
permit be granted. On October 25, 2012, the Division issued an
order approving the permit, and on November 21, 2012, Sevier
Citizens filed a request for agency action asking that the
Department reconsider that decision. The request read,

Under and pursuant to the provisions of U.C.A.
§ 19-1-301.5 and U.C.A. § 63G-4-201(3), Sevier
Citizens for Clean Air and Water, Inc., hereby
requests agency action to review the Approval
Order . . . . This request is submitted over my
signature as counsel for Sevier Citizens.

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The relief sought by Sevier Citizens is simple
reversal of the approval order. The order should be
withdrawn and abrogated in its entirety. The
factual and legal points and arguments supporting
this request were properly raised during the public
comment period. They are repeated in this request
in Exhibit A, attached hereto and incorporated
herein.

Sevier Power Company has been copied with this
request and the attachment as indicated below.

Sevier Citizens attached, as Exhibit A to its request, the twenty-
one pages of comments the organization had submitted during
the comment period. Sevier Citizens did not file a separate
petition to intervene in the permit review adjudicative
proceedings, nor did its request for agency action include an
explicit request to intervene in the agency proceedings.

¶3 The Department appointed an administrative law judge
(the ALJ) to consider Sevier Citizens’ request. The ALJ
recommended dismissing the request on the basis that Sevier
Citizens had not filed a petition to intervene in the litigation as
required by Utah Code section 19-1-301.5. See Utah Code Ann.
§ 19-1-301.5(7) (LexisNexis 2013)2 (explaining that to participate
in a permit review adjudicative proceeding, a nonparty must file
a request for agency action and a petition to intervene, and
setting forth the process for doing so). Sevier Citizens objected to
the recommended order, asserting that the request for agency
action was, in substance, also a petition to intervene. After
reviewing the recommended decision and the objection, the

2. Because section 19-1-301.5 has not been amended since it was
adopted in May 2012, we cite the current version of the Utah
Code for the reader’s convenience.

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Department adopted the ALJ’s recommendation and dismissed
the request for agency action. In its order, the Department found
that Sevier Citizens had ‚failed to file a petition to
intervene[ and had] failed to satisfy the substantive
requirements for intervention.‛

ISSUE AND STANDARD OF REVIEW

¶4 Sevier Citizens seeks judicial review of the Department’s
dismissal order on the basis that its request for agency action
met the requirements for a petition to intervene. An appellate
court may grant relief from a formal agency adjudicative
proceeding only if the ‚person seeking judicial review has been
substantially prejudiced.‛ Utah Code Ann. § 63G-4-403(4)
(LexisNexis 2011). A petitioner may be substantially prejudiced
if the agency ‚erroneously interpret[s] or applie[s+‛ the
applicable law. Id. § 63G-4-403(4)(d). The term ‚‘erroneous[ly],’‛
however, ‚does not imply a standard of review‛; it merely
‚indicat*es+ that we may grant relief when an agency
misinterpreted or misapplied the law.‛ Murray v. Labor Comm’n,
2013 UT 38, ¶ 21, 308 P.3d 461.

¶5 The legislature has afforded the Department ‚substantial
discretion to interpret its governing statutes and rules.‛ Utah
Code Ann. § 19-1-301.5(14)(c) (LexisNexis 2013). However, ‚this
grant of authority does not turn an agency’s application or
interpretation of the law into the type of action that would
warrant an ‘abuse of discretion’ standard.‛ Murray, 2013 UT 38,
¶ 28. Rather, we ‚apply our traditional approach in selecting the
appropriate standard of review,‛ id. ¶ 23, based on whether the
Department’s decision ‚qualifies as a finding of fact, a
conclusion of law, or a determination of a mixed question of law
and fact,‛ id. ¶ 24 (citation and internal quotation marks
omitted).

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¶6 The issue of whether Sevier Citizens’ request for agency
action contains the information required by statute for a petition
to intervene presents a mixed question involving the application
of law to fact. See id. Thus, we determine how much deference to
afford the Department’s decision by assessing whether the
determination is more fact-like or law-like. See id. ¶¶ 35–40. We
conclude that under the circumstances of this case, the
Department’s determination that the request for agency action
did not meet the statutory requirements for a motion to
intervene is more law-like because it involves statutory
interpretation and application of that interpretation to
undisputed facts—the actual contents of the submission rather
than its objective truth. See A & B Mech. Contractors v. Labor
Comm’n, 2013 UT App 230, ¶ 15, 311 P.3d 528 (‚The
interpretation of a statute is a question of law . . . .‛ (citation and
internal quotation marks omitted)). We therefore review the
Department’s decision for correctness.

ANALYSIS

¶7 Utah Code section 19-1-301.5 allows either a party or a
person seeking to intervene to request that an agency review a
decision to issue a permit. Utah Code Ann. § 19-1-301.5(6)(a).
Subsection (7)(b) provides,

A person who seeks to intervene in a permit
review adjudicative proceeding . . . shall, within 30
days after the day on which the permit order being
challenged was issued, file:

(i) a petition to intervene that:

(A) meets the requirements of Subsection
63G-4-207(1); and

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(B) demonstrates that the person is entitled
to intervention under Subsection
(7)(c)(ii); and

(ii) a timely request for agency action.

Id. § 19-1-301.5(7)(b) (emphasis added). The referenced
subsection (7)(c)(ii) requires the petitioner to show that it is
entitled to intervene by:

(A) demonstrat*ing+ that the petitioner’s legal
interests may be substantially affected by the
permit review adjudicative proceeding;

(B) demonstrat[ing] that the interests of justice and
the orderly and prompt conduct of the permit
review adjudicative proceeding will not be
materially impaired by allowing the intervention;
and

(C) in the petitioner’s request for agency action,
rais[ing] issues or arguments that are preserved
....

Id. § 19-1-301.5(7)(c)(ii).3 If the petition to intervene is timely filed
and the petition to intervene and request for agency action

3. Section 19-1-301.5 also states that the petition to intervene
must comply with section 63G-4-207(1) of the Utah
Administrative Procedures Act. Utah Code Ann. § 19-1-
301.5(7)(b)(i)(A) (LexisNexis 2013). Section 63G-4-207(1) requires
that a petition to intervene contain (a) ‚the agency’s file
number,‛ (b) ‚the name of the proceeding,‛ (c) ‚a statement of
facts demonstrating the petitioner’s legal rights or interests are
substantially affected by the formal adjudicative proceeding, or
(continued...)

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otherwise comply with the requirements of section 19-1-301.5,
‚*a+n administrative law judge shall grant a petition to intervene
in a permit review adjudicative proceeding.‛ Id. § 19-1-
301.5(7)(c).

¶8 Sevier Citizens asserts that its request for agency action in
effect included a petition to intervene because it contained all of
the substantive information required of both filings. The
Department and Sevier Power concede that a request for agency
action and petition to intervene may be combined into one
pleading. They dispute, however, Sevier Citizens’ contention
that its request included the substantive components of a
petition for intervention. In particular, they contend that the
request for agency action neither ‚demonstrates that *Sevier
Citizens’+ legal interests may be substantially affected by the
permit review adjudicative proceeding,‛ see id. § 19-1-
301.5(7)(c)(ii)(A), nor shows that ‚the interests of justice and the
orderly and prompt conduct of the permit review adjudicative
proceeding will not be materially impaired by allowing the

that the petitioner qualifies as an intervenor under any provision
of law,‛ and (d) ‚a statement of the relief‛ sought. Id. § 63G-4-
207(1) (LexisNexis 2011). The only component of section 63G-4-
207(1) that the Department and Sevier Power claim Sevier
Citizens failed to satisfy is subsection (1)(c). Because the first
clause of subsection (1)(c) is substantially similar to section 19-1-
301.5’s requirement that the petitioner ‚demonstrate*+ that the
petitioner’s legal interests may be substantially affected by the
permit review adjudicative proceeding,‛ id. § 19-1-
301.5(7)(c)(ii)(A) (LexisNexis 2013), we do not separately address
Sevier Citizens’ compliance with this provision of section 63G-4-
207(1)(c). Moreover, Sevier Citizens has not demonstrated that it
‚qualifies as an intervenor under any *other+ provision of law.‛
Id. § 63G-4-207(1)(c) (LexisNexis 2011).

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intervention,‛ id. § 19-1-301.5(7)(c)(ii)(B). Cf. Butler v. Corporation
of the President of the Church of Jesus Christ of Latter-day Saints,
2014 UT 41, ¶¶ 22, 31 (explaining that although a decision
disposing of less than all the claims or parties is typically made
final and appealable through two separate orders, ‚a district
court may enter a single order that satisfies both rule 7(f)(2) and
rule 54(b)‛ of the Utah Rules of Civil Procedure, provided the
order ‚strictly and expressly compl[ies] with the requirements of
both rules‛). Sevier Citizens argues that it demonstrated that its
‚legal interests may be substantially affected by the permit
review adjudicative proceeding,‛ see Utah Code Ann. § 19-1-
301.5(7)(c)(ii)(A), by attaching to its request for agency action the
twenty-one pages of comments it submitted during the public
comment period following the Division’s notice of intent to
grant Sevier Power’s permit.

¶9 After reviewing the twenty-one pages of comments, we
have located only one portion that makes any statements that
might conceivably be characterized as ‚demonstrat*ing+ that
*Sevier Citizens’+ legal interests may be substantially affected by
the permit review adjudicative proceeding.‛ See id. Interspersed
within two-and-a-half pages of the twenty-one-page document
are some statements by Dick Cumiskey, President of Sevier
Citizens, in which he expresses concern that ‚increased pollution
that may be injected into the airshed by the proposed power
plant‛ will eliminate the ‚relatively pristine air‛ and ‚pristine
vistas‛ that Sevier Valley citizens ‚still enjoy‛ and that make the
county ‚a destination of people seeking clean air, clean water,
and beautiful vistas.‛ Cumiskey does not identify any of these
citizens as members of his organization. And in only one
sentence does he allude to a personal interest in the matter,
when he explains that it was because of this pristine air that he
‚moved from San Diego‛ and that ‚a large percentage of . . .
retirees‛ in the county had ‚moved here.‛

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¶10 Whether Cumiskey’s personal concern about the loss of
pristine air is a legitimate legal interest that would entitle Sevier
Citizens to intervene is not apparent, and Sevier Citizens neither
addresses the issue nor references Cumiskey’s comments in its
briefing. The term ‚legal interests‛ is not defined in the statutes
governing permit review adjudicative procedures or in Utah’s
Administrative Procedures Act generally. Although the Utah
Supreme Court has stated that harm to a legal interest involves
more than mere ‚*e+xpression*+ of concern‛ and instead must
amount to ‚a sufficiently particularized injury‛ to ‚livelihood,
health, and property values,‛ the court expressly declined to
‚determine whether . . . concerns about decreased visibility,
considered alone, would qualify as a sufficient adverse impact‛
to give a non-party standing to intervene, Utah Chapter of the
Sierra Club v. Utah Air Quality Bd., 2006 UT 74, ¶¶ 26–27, 148 P.3d
960.

¶11 Again, Sevier Citizens makes no attempt to address the
concept of ‚legal interests‛ as it might apply to airshed issues in
light of the question raised by Sierra Club. And to the extent the
remainder of the twenty-one pages of comments asserts that the
power plant’s operation may affect the kind of legal interests
that have been recognized by our appellate courts as significant
enough to allow intervention, the comments speak only in terms
of the impact on the community at large, as opposed to specific
members of Sevier Citizens. Indeed, they allude only generally
to the need to evaluate—before the approval process reaches a
point of ‚no going back‛—the health impacts, as well as the
effects on tourism and agriculture, of the operation of the Sevier
Power plant without tying those effects to any particular
potential harm to members of the Sevier Citizens organization.
Therefore, the comments included in the attachment fail to
identify a specific impact that the power plant’s operation is
likely to have on any member’s recognized legal interests, such
as a negative impact on livelihood or property values or
diminution in a particular member’s health or recreational

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enjoyment. For example, Sevier Citizens alleges that ‚*t+here are
already an above average number of residents with heart and
breathing disorders and a large number of people on oxygen‛
and that Sevier Citizens imagines the problem ‚will only get
worse‛ if the Sevier Power permit were to issue, without relating
these conditions to any member of the group. There is no
information in the attachment that indicates whether the
residents with medical conditions likely to be aggravated by the
operation of the Sevier Power plant are also members of Sevier
Citizens. Cf. id. ¶ 26 (noting that the allegations of harm to
‚livelihood, health, and property values‛ must show a
particularized impact on legal interests of the petitioner to
warrant intervention in an administrative proceeding).

¶12 In addition, the twenty-one pages of comments do not
‚demonstrate[] that the interests of justice and the orderly and
prompt conduct of the permit review adjudicative proceeding
will not be materially impaired by allowing the intervention.‛
See Utah Code Ann. § 19-1-301.5(7)(c)(ii)(B) (LexisNexis 2013).
Indeed, the document does not address the impact of allowing
intervention at all.

¶13 Finally, even if the comments contained enough substance
to establish the criteria required for intervention, we do not
believe that the Department erred in rejecting Sevier Citizens’
request for agency action as a petition for intervention. The
format in which a possible showing of entitlement to intervene is
presented—tangential statements interspersed among twenty-
one pages of general comments—unreasonably burdens the
Department with the task of creatively reading the whole
attached exhibit so as to pull together all the possibly pertinent
snippets of commentary and then wringing out any inferences
favorable to intervenor status.

¶14 While we are unwilling to conclude at this point that a
petition for review of agency action must always directly

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address the statutory requirements in order to show entitlement
to intervention, we conclude that in this instance the Department
did not err in determining that Sevier Citizens’ request for
agency action did not amount to a petition to intervene as
defined by section 19-1-301.5.

CONCLUSION

¶15 We decline to disturb the Department’s decision that
Sevier Citizens failed to file a petition to intervene in a permit
review adjudicative proceeding between the Department and
Sevier Power. Although Sevier Citizens could have filed a
petition to intervene as part of its request for agency action, the
request for agency action that it filed did not adequately
demonstrate the criteria required to entitle the organization to
intervene in the agency process.

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